Citation NR: 9725824
Decision Date: 07/25/97 Archive Date: 08/04/97
DOCKET NO. 93-21 622 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased rating for Reiter’s syndrome,
currently rated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
ATTORNEY FOR THE BOARD
George E. Guido Jr., Counsel
INTRODUCTION
The appellant-veteran served on active duty from October 1969
to October 1974.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal of a November 1992 rating decision of the Jackson,
Mississippi, Department of Veterans Affairs (VA) Regional
Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that every morning he has joint pain and
stiffness and that on some days the pain and swelling are
worse, referring specifically to the right shoulder and right
knee. The veteran’s representative argues that each joint
involved should be rated separately on the basis of pain and
limitation of motion, applying 38 C.F.R. § 4.45.
DECISION OF THE BOARD
In accordance with 38 U.S.C.A. § 7104 (West 1991 & Supp.
1997), after review and consideration of all the evidence and
material of record in the veteran's claims file and for the
following reasons and bases, the Board decides that the
preponderance of the evidence is against the claim for an
increased rating for Reiter’s syndrome.
FINDINGS OF FACTS
1. Under the criteria for an active process, the veteran
does not have weight loss or anemia productive of severe
impairment of health or severely incapacitating exacerbations
occurring 4 or more times a year or a lesser number over
prolonged periods.
2. Under the criteria for chronic residuals, while the
veteran has multiple joint involvement, there is no evidence
of compensable limitation of motion under the appropriate
diagnostic codes for the specific joints involved, and where
the limitation of motion of the specific joints involved is
noncompensable under the appropriate diagnostic codes, there
is no evidence of limitation of motion of several joints
objectively confirmed by findings such as swelling muscle
spasm, or satisfactory evidence of painful motion, warranting
a rating in excess of 40 percent.
3. The veteran has not submitted evidence tending to show
that the disability presents such an exceptional or unusual
picture with such related factors as marked interference with
employment or frequent periods of hospitalization to render
impractical the application of the regular schedular
standards.
CONCLUSION OF LAW
Neither the schedular nor the extra-schedular criteria for a
rating in excess of 40 percent for Reiter’s syndrome have
been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Code 5002 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
A Medical Board report discloses that in July 1974 the
veteran was hospitalized for evaluation of arthritis. He
presented with signs and symptoms of inflammation of multiple
joints, particularly the knees and heels. History included
the following: The veteran had been well until February
1974, when he developed fever, malaise, nausea, vomiting,
retro-orbital headaches and photophobia; however, diagnostic
studies were negative and the symptoms subsided; then, in
April 1974, he experienced low back pain and urethral
discharge as well as left knee pain and swelling and signs
and symptoms of arthritis in the right wrist and hand and the
right knee, ankle and feet. The neurological examination was
normal. Examination of the joints revealed tenderness in the
right shoulder and rotator cuff, the right wrist, the right
5th metacarpophalangeal joint, the sacroiliac joints, the
knees, the ankles, and the metatarsophalangeal and proximal
interphalangeal joints of the feet. The ranges of motion of
all joints were normal. X-rays of all involved joints were
within normal limits except for the right sacroiliac joint
and the feet. The diagnosis was Reiter’s syndrome with
sacroiliitis. A Physical Evaluation Board placed the veteran
on the Temporary Disabled Retired List (TDRL).
After service in December 1974, the veteran filed his
original claim for VA disability compensation for Reiter’s
syndrome. In a December 1974 rating decision, on the basis
of the Medical Board report and the Physical Evaluation Board
proceedings, the RO granted the veteran service connection
for Reiter’s syndrome with sacroiliitis and assigned a 100
percent rating on the basis of an active process under
Diagnostic Code 5002. In a December 1978 rating decision,
the RO reduced the rating for the disability as an active
process from 100 percent to 60 percent. In a January 1981
rating decision, the RO reduced the rating from 60 percent to
40 percent. The 40 percent rating was confirmed by the RO in
an April 1983 rating decision. There has been no further
adjudicative action until the veteran filed his current claim
in November 1991.
Current Claim
A summary of the evidence of record, pertaining to the
current claim, follows.
On VA examination in January 1992, the veteran reported that
he was working as a truck driver. He complained of painful
neck, back, pelvic area, shoulders, knees and heels and of
morning stiffness that were relieved with hot shower and
popping of the joints. The pertinent finding was a positive
blood test for HLA-B27 consistent with Reiter’s syndrome.
On VA rheumatology examination in May 1992, there was full
range of motion of the cervical spine with discomfort at the
extremes, the shoulders were painful with full external
rotation, there was full range of motion of the lumbosacral
spine, the hips were okay, the right knees flexed to about
110 degrees with some quadriceps wasting, but no effusion or
synovitis, and the left knee, ankles and feet were within
normal limits. X-rays of the cervical, thoracic and
lumbosacral segments of the spine were unremarkable. On
follow-up in June 1992, the veteran complained of painful
shoulders, low back and knees. X-rays showed degenerative
joint disease of each knee. In July 1992, an ultrasound of
the right shoulder revealed changes due to chronic
tendonitis. In November 1992, the veteran was seen for neck
and back pain. It was noted that X-rays of the cervical,
thoracic and lumbosacral segments of the spine were negative.
In the November 1992 rating decision, the RO denied the
veteran’s claim for a rating in excess of 40 percent under
the criteria for an active disease process. The veteran then
perfected an appeal of the issue that is now before the
Board.
When the claim was initially before the Board in May 1995, it
was remanded for further development, including a VA
examination to determine the severity of Reiter’s syndrome.
On VA examination in September 1996, the examiner reported
that he had reviewed the veteran’s file and X-rays. The
veteran stated that he was worse, that all his joints ached,
that his neck was stiffer and it hurt more and that his right
shoulder hurt most of the time. He also stated that he
occasionally had joint swelling, particularly the knees, but
he did not feel he lost range of motion. It was noted that
he was a city employee in the water department and that he
was not being followed in the Rheumatology Clinic and that he
was taking Tylenol and warm baths for his symptoms.
Examination revealed that the veteran was not in acute
distress. Posture and gait were normal. No joints were
swollen. Range of motion of the cervical spine was normal
with tenderness in the right paraspinous muscles. There was
good excursion with deep inspiration of the thoracic spine.
Range of motion of the lumbosacral spine was excellent with
normal rotation and extension greater than 10 degrees without
pain. He could touch his fingers to his toes. Range of
motion of the right shoulder was normal with anterior
tenderness, suggesting thickened synovium. Left shoulder
range of motion was normal. The elbows, wrists and hands had
normal range of motion without synovitis. Range of motion of
the hip was normal. Range of motion of the knees was normal
without swelling, or effusion. There was normal range of
motion of the ankles without swelling or heat. There were
hammertoes at 2, 3 and 4, bilaterally. The impression was
polyarticular disease consistent with Reiter’s by history.
X-rays revealed bony encroachment on the left C3-4 foramen,
mild hypertrophic spurring of the lumbar vertebral bodies,
mild degenerative changes of the sacroiliac joints, mild
degenerative changes of the acromioclavicular joints, and
mild hypertrophic spurring of the knees.
The examiner concurred with the findings from the previous
examination in May 1992 and he indicated that if X-rays
showed progression, the only clinical worsening were
increased symptoms of stiffness and pain.
After the remand development, the RO continued the 40 percent
rating, applying the rating criteria for the active process
and for chronic residuals and so notified the veteran in a
March 1997 Supplemental Statement of the Case.
Analysis
The Board determines that the facts pertinent to the claim
have been developed, and that there is no further statutory
duty to assist the veteran with his claim. 38 U.S.C.A. §
5107(a).
Disability ratings are assigned in accordance with the VA’s
Schedule for Rating Disability (Schedule) and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities.
The general provisions applicable to rating a disability
provide that each disability must be viewed in relation to
its history. 38 C.F.R. § 4.1. Similarly, 38 C.F.R. § 4.2
requires that the rating specialist interpret reports of
examination in light of the whole recorded history,
reconciling the various reports into a consistent picture so
that the current rating may accurately the elements of
disability present. And that each disability must be
considered from the point of view of the veteran working or
seeking work. Also the basis of a disability rating is the
ability to function under the ordinary conditions of daily
life, including employment. 38 C.F.R. § 4.10.
Although the evaluation of a service-connected disability
requires a review of the veteran's medical history with
regard to that disorder, the primary concern in a claim for
an increased evaluation for service-connected disability is
the present level of disability. Where entitlement to
compensation has already been established, and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
the current findings. Francisco v. Brown, 7 Vet.App. 55, 58
(1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
When an unlisted condition is encountered, such as Reiter’s
syndrome, it is permissible to rate by analogy to a closely
rated disease. 38 C.F.R. § 4.20.
As there is no separate diagnostic code for Reiter's
syndrome, the RO has rated it by analogy to other types of
arthritis, Diagnostic Code 5009, which is ratable as
rheumatoid arthritis under Diagnostic Code 5002.
Under Diagnostic Code 5002, rheumatoid arthritis is rated
under separate criteria as either an active process or for
chronic residuals.
Currently, the 40 percent rating under the criteria for an
active process equates to symptom combinations productive of
definite impairment of health objectively supported by
examination findings or incapacitating exacerbations
occurring 3 or more times a year. The criteria for the next
higher rating, 60 percent, under the same diagnostic code for
an active process are less than totally incapacitating
symptoms, but with weight loss and stamina productive of
severe impairment of health or severely incapacitating
exacerbations occurring 4 or more times a year or a lesser
number over prolonged periods.
Since the pendency of this claim, beginning in November 1991
and up to the time of the most recent VA examination in
September 1996, there is no history or documentation of
weight loss and anemia productive of severe impairment of
health or severely incapacitating exacerbations occurring 4
or more times a year or a lesser number over prolonged
periods attributable to Reiter’s syndrome to meet or
approximate the criteria for a 60 percent rating on the basis
of an active process.
In rating for chronic residuals such as limitation of motion,
limitation of motion is rated under the appropriate
diagnostic codes for the specific joints involved. Under the
appropriate diagnostic codes for the specific joints
involved, the criteria for a minimum compensable rating on
the basis of limitation of motion are as follow: Cervical
spine, 10 percent for slight (Diagnostic Code 5290); thoracic
or dorsal spine, 10 percent for moderate or severe
(Diagnostic Code 5291), lumbar spine, 10 percent for slight
(Diagnostic Code 5292); sacroiliac, 10 percent for
characteristic pain on motion (Diagnostic Codes 5294 and
5295); shoulder, 20 percent for limitation of motion at
shoulder level (Diagnostic Code 5201); elbow, 10 percent for
flexion limited to 100 degrees or extension limited to 45
degrees (Diagnostic Codes 5206 and 5207); wrist, 10 percent
for dorsiflexion less than 15 degrees or palmar flexion
limited in line with forearm (Diagnostic Code 5215); hands,
10 percent for favorable ankylosis of either the thumb, index
or middle finger (Diagnostic Codes 5224, 5225 and 5226); hip,
10 percent for limitation of extension to 5 degrees or
flexion limited to 45 degrees (Diagnostic Codes 5251 and
5252); knee, 10 percent for limitation of flexion to 45
degrees or extension limited to 10 degrees (Diagnostic Codes
5260 and 5261); ankle, 10 percent for moderate (Diagnostic
Code 5271); and, feet, 10 percent for all toes without claw
foot, unilateral (Diagnostic Code 5282).
On the VA evaluations in May 1992 and September 1996, there
was full range of motion of the cervical spine, lumbosacral
spine, shoulders, elbows, wrists, hands, hips, left knee and
ankles. The right knee flexed to about 110 degrees on one
examination and on the other it was described as normal.
There was good excursion with deep inspiration of the
thoracic spine and there were hammertoes at 2, 3 and 4,
bilaterally. None of these findings support a compensable
rating under the appropriate diagnostic code for the specific
joints involved.
Where, as here, the limitation of motion of the specific
joints involved is noncompensable under the diagnostic codes,
a rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under diagnostic code 5002.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. The ratings for the active
process will not be combined with the residual ratings for
limitation of motion or ankylosis, and the higher evaluation
will be assigned.
On VA rheumatology examination in May 1992, there was
discomfort at the extremes of motion of the cervical spine,
the shoulders were painful and there was some quadriceps
wasting above the right knee. There was no evidence of
swelling or muscles spasm. On VA examination in September
1996, the veteran stated that all his joints ached, that his
right shoulder hurt most of the time and that he occasionally
had joint swelling, particularly the knees. Again, there was
no evidence of swollen joints or muscle spasm. There was
tenderness in the right paraspinous muscles and in the area
of the right shoulder.
The Board finds satisfactory evidence of painful motion
involving the cervical spine, the shoulders and knees, but
not of the thoracic and lumbar segments of the spine,
sacroiliac joints, elbows, wrists, hands, hips, ankles and
feet. The rating for the five major joints, assigning a 10
percent rating for each, under the Combined Ratings Table,
38 C.F.R. 4.25, Table I, is 40 percent, applying the
bilateral factor. As the ratings for the active process
cannot be combined with the residual ratings for limitation
of motion, the Board concludes that under either criteria the
disability is not more than 40 percent disabling.
Satisfactory evidence of painful motion is consistent with
rating factors of functional loss due to pain under 38 C.F.R.
§ 4.40, reductions of normal excursion of joint movements
under 38 C.F.R. § 4.45, and painful motion with any form of
arthritis under 38 C.F.R. § 4.59.
As for an extra-schedular consideration under 38 C.F.R.
§ 3.321(b)(1), the case does not present such an exceptional
or unusual disability picture as to render impractical the
application of the regular schedular standards, considering
such factors as marked interference with employment or
frequent periods of hospitalization as there is no evidence
of record of marked interference with employment and the
veteran has not required frequent periods of hospitalization
for treatment of Reiter’s syndrome.
ORDER
A rating in excess of 40 percent for Reiter’s syndrome is
denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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